Human rights - diplomatic protection - arbitrary detention - expulsion - damages - citation of other courts by International Court of Justice - remedies in international law.

Author:Andenas, Mads
 
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Ahmadou Sadio Diallo. (Republic of Guinea v. Democratic Republic of the Congo). Judgment on Compensation. At http://www.icj-cij.org.

International Court of Justice, June 19, 2012.

Human rights-diplomatic protection-arbitrary detention-expulsion-damages-citation of other courts by international court of justice-remedies in international law.

For the first time since the Corfu Channel case of 1949, (1) the International Court of Justice (Court) has awarded damages. The Court did so on June 19, 2012, in its third judgment in the Diallo case, brought by the Republic of Guinea for human rights violations committed against a Guinean citizen by the Democratic Republic of the Congo (DRC). (2) The judgment was also the Court's first on damages in a human rights case. (3)

The proceeding was filed in 1998. According to Guinea, Ahmadou Sadio Diallo, a Guinean citizen who had resided in the DRC for thirty-two years, was the manager and, in the end, the sole shareholder of two private limited liability companies he had founded: an import-export company and a company specializing in container transport of goods. In the late 1980s, Diallo initiated various steps, including in the courts, in an effort to recover substantial debts owed to these companies by the DRC (in particular, by Gecamines, a state enterprise with a monopoly on mining) and by oil companies operating in that country (Zaire Shell, Zaire Mobil, and Zaire Fina). In retaliation, Guinea alleged, he was arrested and imprisoned on January 25, 1988; more than a year later the public prosecutor in Kinshasa ordered his release. On October 31, 1995, the prime minister issued an expulsion order against Diallo on grounds that his presence breached public order. He was again detained and, on January 31, 1996, deported to Guinea.

In its application to the Court, Guinea contended that Diallo had been unlawfully imprisoned in both 1988-89 and 1995-1996; divested of his important investments, companies, bank accounts, and movable and immovable properties; and then expelled. Invoking its right of diplomatic protection, Guinea sought compensation for Diallo's material damage and an official public apology. (4)

In 2007, the Court rejected the DRC's preliminary objections based on Guinea's right to exercise diplomatic protection for Diallo (including his direct rights as a shareholder of the private limited liability companies) and on failure to exhaust local remedies. (5)

In the 2010 judgment on the merits, the Court ruled that in carrying out the arrest, detention, and expulsion of Diallo, the DRC had violated his fundamental rights under applicable human rights treaties, including the International Covenant on Civil and Political Rights (Covenant) and the African Charter on Human and Peoples' Rights (African Charter); but it rejected Guinea's claims based on his direct rights as a shareholder or a manager of the private limited liability companies. (6) Congolese restrictions on these rights, it said, did not constitute a violation of any protected right to property. Moreover, Guinea's claims concerning the 1988-89 arrest had been submitted too late and were rejected. But the 1995-96 detention and expulsion were arbitrary and thus obligated the DRC "to make appropriate reparation, in the form of compensation, to the Republic of Guinea for the injurious consequences of the violations of international obligations" under the Covenant and the African Charter. (7) Failing agreement between the parties within six months on the amount of compensation owed to Guinea by the DRC, the question was to be settled by the Court. (8) When the six months expired without an agreement, it fell to the Court to decide on the amount.

In the subsequent proceeding, Guinea sought compensation for nonmaterial injury as well as three heads of material damage: alleged loss of personal property, alleged loss of professional remuneration during Diallo's detentions and after his expulsion, and alleged deprivation of "potential earnings." The total amount of its claim exceeded US$11.5 million. The DRC offered US$30,000 for nonpecuniary injury and nothing for material damage.

In its judgment on compensation, the Court first addressed the nonmaterial injury. It recalled its earlier finding that Diallo had been arrested without being informed of the reasons for that action or being given the possibility of seeking a remedy; that he had been detained for an unjustifiably long period pending expulsion; that he had been made the object of accusations that were not substantiated; and that he was wrongfully expelled from the country where he had resided for thirty-two years and engaged in significant business activity (para. 21). Noting that "non-material...

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